Dakar, Feb 9 (APS) – The decision of the Constitutional Council of February 1, 2023 authorizing the delegalisation of law n° 2014-03 of January 22, 2014 on rent is of “considerable scientific interest”, considers, Papa Assane Touré, Deputy Secretary General of the Government in charge of Legal Affairs
‘’(…) the decision of the Constitutional Council of 1is February 2023 presents a considerable scientific interest to have, in a way, on the initiative of the Prime Minister, revived from its ashes, the constitutional procedure of delegalisation which had disappeared in the rubble of the defunct Supreme Court”, considers Mr. Touré, msenior civil servant, doctor of private law and criminal sciences.
He made this observation in a contribution published in the national daily Le Soleil.
According to him, ”faced with a tendency to house provisions of a regulatory nature in the laws, this spectacular procedure constitutes a powerful mechanism making it possible to ensure compliance by the National Assembly with the domain of the regulations (…)”. It also represents “a formidable tool of normative governance guaranteeing the effectiveness of Government interventions”, he underlines.
According to the lawyer, by his decision of 1is February 2023, ”the Constitutional Council ruled that the aforementioned law n° 2014-03 of January 22, 2014 is semi-legislative and semi-regulatory. This decision is of great interest from a legal point of view, to pave the way for the modification, by decree, of certain provisions of Law No. 2014-03 of January 22, 2014”, he analyzes.
In his text, he recalls that ”the procedure of delegalisation also called + downgrading + is instituted by article 76, paragraph 2 of the Constitution”.
According to him, “this provision empowers the Constitutional Council, at the request of the President of the Republic or the Prime Minister, to declare that a text of legislative form (ordinary law, ratified ordinance in particular), intervened in the field of regulation, has, therefore, a regulatory character’’.
“In Senegal, he recalls, many of the texts in legislative form had been taken before independence and in the 1960s and 1970s. During these periods, the Government often benefited from legislative authorizations allowing it to take ordinances intervening in the legislative field.”
He explains that it is for this reason that ”several texts of legislative form were subsequently delegalised, at the request of the executive authorities”.
A procedure fallen into disuse
‘’Thus, after having been mobilized on several occasions by the public authorities, the constitutional procedure of delegalisation has fallen into disuse. To our knowledge, the last implementation of this procedure dates back to the decision of the defunct Supreme Court rendered on August 18, 1971”.
He notes that ”nearly half a century later, consultations on the reduction of the cost of living gave the Constitutional Council the opportunity to +resuscitate+ the delegalisation procedure”.
“Indeed, faced with the exponential increase in rents which considerably affects household income, the law n° 2014-03 of January 22, 2014 bringing down the rents that had not been calculated according to the corrected surface area was adopted. Thus, faced with the unsuitability of the corrected surface area system to sociological realities, the legislator set the rental amounts for residential leases using a system of percentages”, he observes.
But nine years after the entry into force of Law No. 2014-03 of January 22, 2014, it is clear, according to him, that “the objective of the reduction in rents expected was far from being achieved due to in particular the stratagems used by certain landlords and real estate actors to circumvent civil legislation and the absence of an institutional mechanism for regulating rents”.
According to him, it is on the basis of this observation that ”the public authorities have initiated national consultations on the fight against the high cost of living having involved all the living forces of the Nation”.
According to him, the operationalization of the State’s decision to lower rents “required the revision of Law No. 2014-03 of January 22, 2014, which had already engraved the amounts of rents in legislative stone”.
“Thus, by letter n° 0130/PM/SGG/SGA/JUR/SP of January 26, 2023, received and registered at the registry on January 27, 2023 under number 2/C/23, the Prime Minister seized the Constitutional Council in an emergency procedure, a request for the purpose of declaring the regulatory nature of Law No. 2014-03 of January 22, 2014, pursuant to Article 76, paragraph 2 of the Constitution”.